TMI Blog2022 (4) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... d in laying of roads. These are the documents which the petitioner is required to produce before the authorities to substantiate that the imported goods do not fall within the purview of restrictions in the Foreign Trade Policy 2015-2020. This exercise has not been carried out. The impugned orders are quashed and the cases are remitted back to the respondent to pass a fresh order within a period of three months from the date of receipt of a copy of this order - Petition allowed by way of remand. - Writ Petition (MD) Nos.13225 & 13226 of 2021 And W.M.P.(MD)No.10215 of 2021 in W.P.(MD)No.13225 of 2021 - - - Dated:- 11-4-2022 - Honourable Mr.Justice C.Saravanan For the Petitioner (in both the W.Ps.) : Mr.A.K.Jayaraj For the Respondent (in both the W.Ps.) : Mr.B.Vijay Karthikeyan Senior Standing Counsel COMMON ORDER After hearing the learned counsel for the petitioner and the learned Senior Standing Counsel for the respondent, these Writ Petitions are disposed of by this common order. 2.The petitioner had imported consignments of Tyres, which were ostensibly in contravention with the Foreign Trade Policy [FTP] 2015-2020. According to the respondent, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heme obtaining in the Customs Act, 1962, the Foreign Trade Development and Regulation Act, 1992, Foreign Trade (Regulation) Rules, 1993 and the earlier Hazardous Wastes Rules concluded that despite the fact that the goods, whose import is restricted in terms of the Foreign Trade Policy, should be construed to be prohibited goods, there is no bar for the release of the goods. The learned Judge also noted that it is not open to the customs authorities to insist on re-export. This was to be done only by the authorities specified in Schedule VII of the Hazardous and Other Wastes (Management and Transboundary) Rules, 2016. As in that case, in the present case also, no proceedings have been initiated by the authorities in terms of the Hazardous Wastes Rules for directing the petitioners to re-export the goods. This decision of the learned single Judge was also confirmed by the Hon'ble Division Bench in the decision reported in 2016 (336) E.L.T 199 (Mad) (Commissioner of Customs (Sea Port-Import), Chennai vs. City Office Equipments). 11.I am therefore of the view that the petitioners are entitled to provisional release of the goods under Section 110A of the Customs Act, 1962. Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand allowed. No costs. Consequently, connected miscellaneous petitions are closed.'' 4.A similar order was passed again in respect of subsequent consignments in W.P.(MD)Nos.10513 and 10519 of 2020 [Black Gold Technologies vs. Union of India] reported in 2020 (374) ELT 529 (Mad.). Meanwhile, the respondent also preferred Writ Appeals in W.A.(MD)Nos.863 of 2020 etc. batch , which came to be dismissed by a Division Bench of this Court, by a common judgment dated 29.09.2020 , with the following observations:- ''28.In the considered opinion of this Court, in the light of the non taking of stand by the appellants/responds as to the applicability of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 and in the light of the stand taken in the Writ Petitions, it cannot be concluded as a restricted item, for which, provisional release is not prohibited. It is also to be pointed out at this juncture that the third appellant/third respondent in compliance of the order passed in the Writ Petitions has also ordered the provisional release, subject to various conditions. 29.Therefore, this Court, in the light of the above facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack Gold Technologies vs. Union of India [2020 (374) ELT 529 (Mad.)] 7.The learned Senior Standing Counsel for the respondent submits that the Writ Petitions are devoid of merits and placed reliance on a decision of this Court in Jet Unipex vs. Commissioner of Customs, Chennai reported in 2020 (373) E.L.T. 649 (Mad.) . He submits that it is not mandatory to extend the benefit of cross-examination of Mahazar Witness or the Officers, who investigated the case. 8.The learned Senior Standing Counsel for the respondent further submits that the petitioner has imported cut Tyres at Tuticorin Port for setting up a factory in Tamil Nadu at Tuticorin. However, till date, no factory has been set up. It is submitted that during the course of investigation, the petitioner had stated that the imported Tyres were meant for the manufacture of Rubber Crumb and Granules and that a factory had been set up in Rajasthan. 9.The learned Senior Standing Counsel for the respondent further submits that the jurisdictional authorities were requested to search the premises of the importer at Delhi and Jaipur at Rajasthan. The Joint Commissioner, Jaipur, vide Letter F.No.VIII (48)/27/Inv./Prev./202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les in their factory named, 'M/s.Black Gold Technologies' and that they have planned to set up a Unit in Tuticorin, for manufacturing of Rubber Crumbs and Granules and that they have collected the details of the Customs Broker namely, M/s.Indian Shipping and Logistics Facility Pvt. Limited, Tuticorin, through online and UK forwarders M/s.Amdip Traders Limited specifically recommended M/s.Indian Shipping and Logistics Facility Private Ltd., Tuticorin. It is submitted that the goods were imported from the United States of America. 11.The learned Senior Standing Counsel for the respondent further submits that the documents, which were produced by the petitioner, were relating to the permission granted by the Rajasthan State Pollution Control Board. All the documentary evidences produced by the importer for existence of their Company have been issued prior to November 2019, i.e., date of registration of M/s.Anju Plastics in the above said address. The import of used rubber tyres has taken place during January and February 2020. Hence, the onus is on the importer to substantiate that their factory has been functioning in the address mentioned above till now and the imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 641 (SC) was also considered. The Department has to decide the case on preponderance of probability as to whether the petitioner had a probable case for justifying the import as freely imported goods under Chapter 4004 [Sub Head:- 4004 00 00]. 16.In this case, the import is from the United States of America. It is not clear why the import has been made through Tuticorin Port, in the tip of the Peninsula in the Bay of Bengal. If the petitioner's case is that the import was made for their factory in Rajasthan, the petitioner would have chosen other Ports, which are nearer to Rajasthan either in Gujarat or in Maharashtra or in Goa or in Kerala on the Western Coasts. This needs to be properly explained by the petitioner. If the petitioner indeed operates a factory in Rajasthan, it is open for the petitioner to file a copy of the GST Registration of the factory and details of documents to substantiate that the petitioner had indeed manufactured the Rubber Crumbs and Granules and sold to various Contractors/statutory authorities engaged in laying of roads. These are the documents which the petitioner is required to produce before the authorities to substantiate that the imported ..... X X X X Extracts X X X X X X X X Extracts X X X X
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